Baroness Jones of Moulsecoomb: My Lords, I did something very controversial during the EU referendum campaign: I went against my own party’s remain position. I campaigned to leave the EU because the EU is a top-down project designed to promote endless industrial development and economic growth. It remains my strongly held belief that we can have a greener, fairer, healthier country by leaving the European Union. In taking this view, I feel a strong personal responsibility to Greens everywhere and to the country to do what I can to ensure that Brexit is a success for the environment. I still want to leave the EU, but I absolutely cannot support the Bill as it stands. The Constitution Committee has described the Bill as,
“fundamentally flawed from a constitutional perspective in multiple ways”,
but it is fundamentally flawed from an environmental and social perspective too. It remains government policy that through Brexit we will strengthen our democracy, protecting and enhancing environmental and social laws in the process. In its current form, though, the Bill will fail on all those aims and, sadly, the gaps in it will leave the environment as the biggest casualty.
The Bill does not do what it was promised it would do: it does not ensure that existing EU law is retained. In fact, it explicitly excludes certain aspects of EU law without any justification. For no clear reason it drops some fundamental principles of EU law, such as the precautionary principle that must currently be applied  by courts, businesses and government. Additionally, the Bill retains EU laws without their accompanying preambles. This misses out, for example, the “polluter pays” principle from the environmental liability directive and loses the aim of biodiversity conservation from the habitats directive. These omissions lose crucial interpretive aids for the courts in some obscure attempt to squash a square peg into a round hole as we bring the body of EU law into the literal system of English law. I struggle to understand how the courts will continue to apply retained EU law when these essential principles are gutted from our jurisprudence. Indeed, senior judges have expressed the need for Parliament to make this as clear as possible. We are setting ourselves up for decades of legal chaos while we needlessly undermine our environmental and social protections.
I am warmed by the many promises this Government are making about ambitions for the environment and their pledges to bring forward legislation. However, I note a very deliberate change of tack in their approach to the Bill. No longer is it seeking to retain all EU law and bring everything into order to prepare for Brexit. The Government are now saying that a whole raft of other Bills are the correct place for retaining some of these really important parts of EU law. It is the promise of jam tomorrow, which we more or less do not accept. I suspect that this repositioning is a government tactic to avoid some very important amendments being made to the Bill while passing through scrutiny. There may well be better legislation in future in which we can establish the lasting legal frameworks that will define our post-Brexit lives, but we only have the Bill before us now and we cannot allow deficiencies in it to prevail in the hope that some future Bill may address them. We must amend and repair this Bill so that it is fit for purpose, and I hope there is sufficient will in this House for that to happen.
I shall speak on two issues in particular. First, on animal sentience, there has been a surprising amount of public support lately for this rather technical-sounding principle. We are a nation of animal lovers who understand in our hearts that living creatures deserve respect and care, and that humans should avoid their suffering as far as possible. The Government’s attempt to head off amendments to the Bill has been to publish a draft Bill recognising animal sentience, but that achieves the opposite of their intention by setting out a perfect example of how the Government could well fail to replace EU law with equivalent provisions. A legal opinion commissioned by Friends of the Earth has compared the provisions of the draft Bill with Article 13 of the Treaty on the Functioning of the European Union. Article 13 requires the state and its bodies to “pay full regard” to animal welfare. It has a very narrowly limited set of permitted exemptions. Contrast this with the draft Animal Welfare (Sentencing and Recognition of Sentience) Bill, which requires Ministers only to pay “regard” to animal welfare, balanced against other matters of public interest. This makes the relevant considerations a matter of fact to be assessed by the decision-maker, subject only to the relevant legal test of irrationality.
So animal sentience and animal welfare is an ongoing example of the withdrawal Bill failing to bring EU law across into domestic law, and of the Government’s  proposed alternative legislation failing to give the same level of protection as exists in EU law. Far from setting a gold standard, it is a significant undermining of the current position. Accordingly, this makes me quite sceptical that the Government will be able to protect and improve on EU law in other Bills. It seems incumbent on us to fix whatever deficiencies exist in the Bill now so that we can be sure, when it goes to the other place, that they will have a good Bill to comment on.
The second issue is the Henry VIII powers contained in the Bill. The reports of the Constitution Committee have done a fantastic job of setting out these issues. I am sure that many learned Members of this House will cover the detail of the constitutional implications, so I will focus on the principles that are at stake. The Government are giving themselves some very broad powers, which could even be used to grant themselves more powers. I know that many civil liberties organisations are very concerned about human rights. Stonewall, for example, would like a clear commitment that LGB people’s hard-won rights will be protected.
I want to be constructive; I remain supportive of leaving the EU, but the Bill before us is the wrong way of going about it. I am confident that the collective wisdom in your Lordships’ House will bring this Bill into a much more palatable form but, as it stands, I cannot possibly vote for it.